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SERVES THEM RIGHT, OR DOES IT ?
The small screen's verdict |
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Twitter, sex and politics
On the record
PROFILE
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The small screen's verdict The principle of 'Jail and no bail' is becoming increasingly popular with trial courts examining some of the major recent scams like the 2G Spectrum and the Commonwealth Games 2010. So far, no accused has been granted bail even after they have been in judicial custody for several weeks. Way back in 1978, the Supreme Court Judge, Justice V. R. Krishna Iyer delivered a land mark judgment in which he laid down the basic principles of judicial discretion while granting or refusing bail. Personal liberty is a precious right guaranteed and recognised under Article 21 of the Constitution. The courts, therefore, are required to exercise utmost discretion and use the powers conferred on them carefully. The court, for example, is required to find out whether the accused can commit another serious offence or influence prosecution witnesses, while out on bail. The court has also to see the nature of the accusation, the nature of the evidence in support of the accusation, the gravity of the offence and the severity of the punishment which conviction will entail. Bail over jail Justice Iyer had discussed the formula of "bail, not jail" in the matter of Niranjan Singh vs. Prabhakar Rajaram Kharote & Ors. The Judge said that detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. No party, he added, should have the impression that his case has been prejudiced. A prima facie case is not the same as an exhaustive exploration of the merits during the trial. The Supreme Court in 1978 said that the plea for bail may be considered more leniently if the accused is not facing offences punishable with life imprisonment or death. In Joginder Singh vs. Delhi Admn (1994) case, the apex court said that unless there are compelling reasons and extraordinary circumstances, the accused should not be arrested; because it not only affects liberty of a person but also puts a stigma on the person and his family. But the caution and discretion advised by the apex court in the past is being increasingly ignored by the courts. One gets the impression that the courts are finding it difficult to ignore findings in the media and conclusions drawn by the media. They seem to be playing safe by denying bail these days even in cases where they granted bail as a matter of routine earlier. The curious case of Hasan Ali, accused of stashing thousands of crores of Rupees in Swiss banks and denied bail, can be cited. There does not seem to be any evidence to back up the charges against him and there is of course no indication of the foreign accounts. While dealing with the bail application of former Telecommunication Minister A. Raja and others like Sidharth Behura, Shahid Usman Balwa, R. K. Chandolia, Vinod Goenka, Sanjay Chandra, Gautam Doshi and Hari Nair, (all of whom are in judicial custody), the Special CBI Sessions Judge denied them the discretion of bail and treated them like convicts, no doubt on the presumption that the evidence collected by the CBI would ultimately find them guilty. But what if the CBI fails to secure their conviction ? Five or ten years down the line, if the case against them is dismissed for insufficient evidence, the accused would have no legal recourse left to seek compensation. But in the meanwhile, their lives, career and reputation would have been destroyed by then. Defence lawyers have argued before the Delhi High Court, where many of the accused have gone for bail, that since the charge sheet has already been filed, there is little or no possibility of the petitioners interfering with the investigation. They also sought to point out that the petitioners are unlikely to flee away from justice, given their standing, and that there is no complaint that before their arrest, they had tried to influence witnesses or interfere with the investigation. Many of them are or were government servants or employees in private firms and claimed that they have not received any personal gain from the alleged conspiracy. But none of this cut any ice with the courts. The philosophy of 'bail and not jail' - that bail is the rule and refusal is the exception - has, however, been discarded by both the trial courts as well as the High Court. Economic offences serious The courts have justified their refusal of bail on the ground that the offence alleged is of a very grave nature. "…economic offences involving exploitation of a public office have the potential to impact the society at large. When a loss is caused to the state exchequer, every citizen suffers because the money could have been used for the development or public welfare measures like food, education, health etc., and in the instant case, the petitioners have been shown to be prima facie involved in criminal conspiracy resulting in financial loss to the tune of thousands of crores of Rupees and that this is an offence of the highest magnitude which not only impact the society but also puts a question mark on the governance of the country, which can adversely affect the economy of the country," observed an order denying bail. However, in the Jain Hawala case, people against whom allegations were leveled included top politicians from both ruling and opposition parties. But all of them were granted bail at the first instance as a matter of right. The Hawala case was also under the supervision of the Supreme Court and Justice J. S. Verma. But the case was eventually dismissed by Justice Mohd. Shamim of the Delhi High Court for want of evidence. In 1989, in the case of Ram Chander & Ors. Vs. State of Rajasthan and then in Parveen Malhotra Vs. Delhi Administration, it was observed that sentiments or emotions have no part to play in bail matters even when the allegation was that the accused had committed a grave offence of bride burning, which invited punishment of life imprisonment or death. Every judge, unless he is a bad judge, knows that the right thing to do is to apply the oft-repeated saying of Lord Chief Justice Hewart , who laid down, "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". Role of the media Unfortunately, the media, especially the Television channels, have assumed the roles of both prosecutor and judge in all major scandals. When righteous anchors assert on TV that " the nation is convinced that the accused are guilty", they tend to influence the judiciary. It is now also commonplace to find non-legal experts, politicians and socialites turning up in TV studios every evening to pass the small screen's judgment on any issue under public scrutiny. Trial by the media ought to be of serious concern to society. For a fairly long time, lower courts got into the habit of denying bail. Granting bail, they feared, would make them suspect in the eyes of superior courts, the public and the media. The non-application of mind is assuming dangerous dimensions and the precedents being set are bound to affect not just the handful of accused in the 2G scam but also thousands of other accused all over the country. Finally, it must be remembered that the CBI does not have an impressive record of winning cases and securing convictions in courts. Denial of bail is unlikely to increase the CBI's conviction rate, judging by the quality of evidence they have produced in the past. (The writer is a reputed criminal lawyer of Delhi.) OPINION DIVIDED
It has often been seen that the investigating agencies, more often than not, look for scapegoats; and allow the powerful and influential culprits to go scot-free, as far - and as long - as possible. But, for the first time, investigating agencies have netted the high and the mighty. By not adopting a too liberal approach in the matter of bail, the courts are not only doing justice, but also giving the right message of justice being done. The rule that a man is presumed innocent till he is proved to be guilty is to be carried out in all its consequences. The reason is not because the presumption is always true but because society is capable of inflicting much more harm on the individual than the individual can inflict upon society. The concept that trial may not result in conviction, so punish him at the threshold by denying him bail results in grave miscarriage of justice. Judgments running into hundred of pages while declining bail petitions can lead to an apprehension in the mind of the accused that he or she has been pre-judged. This is the reason that elaborate reasoning is not insisted upon by the Supreme Court. |
Twitter, sex and politics
When Anthony Weiner, a Democratic congressman from New York, tearfully informed the world that he had sent inappropriate photographs of himself to women on Twitter, one couldn't help but be struck by a sense of deja vu. With his admission, Weiner joined a long and growing (no pun intended) list of American politicians who have confessed embarrassing extra-marital dalliances. Weiner had denied for days that he had engaged in any inappropriate behaviour and even declared that he couldn't say with "certitude" whether a photograph sent from his Twitter account of man's bulging underpants was actually him.
As it turns out, it was. Weiner broke down frequently as he informed a packed press conference of his online shenanigans. Yes, he did send raunchy texts and photos to several women over the social networking site Twitter. No, all the women were of a legal age (above 21). How could he say with certitude if he first claimed not to know their ages? Awkward silence. He declared that his wife still loved him despite his transgressions. His wife, Huma Abedin, the daughter of an Indian father and a Pakistani mother, is an intensely private confidante to Secretary of State Hillary Rodham Clinton. Soon after the scandal broke it was reported that Abedin is pregnant with the couple's first child.
A bipartisan affair Sex scandals are a bipartisan affair in America and instant fodder for news organisations desperate to break stories on a 24x7 news cycle and edge past their rivals in the ratings game. Weiner's confession came barely four months after another New York congressman, Chris Lee, a Republican, resigned after shirtless photographs of him that he sent to a woman he met online. That a spate of sex scandals continues to rock the world of U.S. politics with unnerving frequency goes to show one thing: American politicians are good at keeping it up. Even the top political office in the land is not sacred. From John F. Kennedy's affairs with a string of women, including the Hollywood icon Marilyn Monroe, to Bill Clinton's dalliance with White House intern Monica Lewinsky, the White House has also been the scene of many escapades. Clinton was impeached by the House of Representatives in 1998 on charges of perjury and obstruction of justice stemming from his affair with Lewinsky. The Senate refused to remove him from office. In what in hindsight must be an awkward coincidence, Clinton officiated at Weiner's wedding to Abedin last summer.
Deceptive reputations Not every philandering politician's fortunes have followed the downward trajectory of his trousers. Elliot Spitzer resigned in 2008 as governor of New York state after he was identified as "Client 9" in a bust of a prostitution ring. Ironically, before becoming governor, Spitzer, earned a reputation as a tough attorney general of New York who prosecuted prostitution rings. The Democrat now earns big bucks as the host of a political talk show on CNN. In a touch of irony, Spitzer discussed Weiner's press conference, which he described as "cringe-worthy." "Believe me, I know. I've been there," he said. Eric Massa, a Democrat from upstate New York, resigned from his seat in Congress last year following allegations that he had sexually harassed male staffers. Massa denied the allegations but acknowledged having "tickle fights" with men in his office. Former Democratic Senator John Edwards was indicted recently on charges of using nearly $1 million in illegal campaign funds to help cover up an extramarital affair during his 2008 bid for the White House. Edwards fathered a child with the woman, Rielle Hunter, while his wife was battling breast cancer. South Carolina Governor Mark Sanford dashed his prospects of ever running for President in 2009 when it was revealed that he was spending time with his mistress in Argentina rather than hiking on the Appalachian Trail, as he had informed his staff.
Hypocrisy The Republican Party, too, is replete with similar examples. Senator John Ensign of Nevada, once viewed as a potential presidential candidate, left office amid an investigation into his affair with a former aide and his attempt to cover it up. The discovery of such scandals often unmask the moral hypocrisy of faith-based family values conservatives. Republican Senator, Larry Craig of Idaho, was known for his steadfast opposition to gay rights as a member of Congress. Craig was arrested on charges of soliciting sex … wait for it... in a men's bathroom! Yet another lawmaker, Mark Foley, resigned after news broke that he had sent sexually explicit e-mails to former male colleagues. It is often the spouses and mistresses who are left to pay the price for these affairs. In 2001, the mysterious disappearance of intern Chandra Levy after an affair with California Democratic Congressman Gary Condit had Washington parlors agog. Levy's remains were found in a popular park in Washington a year later. Condit has denied any role in her disappearance and death. Jenny Sanford divorced her husband, but Hillary Clinton decided to stand by her man. As the spotlight shines brightly on Weiner and Abedin, one can't help but wonder whether Clinton is advising her close aide to do as she did. |
On the record
For Arvind Kejriwal, the 2006- Magasaysay award winner for his contribution to the enactment of the RTI Act, the crusade for a strong Lokpal Bill is a do-or-die situation. Talking to The Sunday Tribune, this 1968-born B. Tech from IIT Kharagpur, who resigned from the IRS in 2005 to pursue social activism, reiterates Team Anna's commitment toward exposing corruption at all levels. What do you think is the future of the joint drafting committee? I cannot predict what will be the future of the committee in view of the belligerence the government is showing. But we will not compromise on the issue. But the meetings are becoming increasingly frustrating. While we give arguments to prove our point, the government's representatives just give decisions. The fact is they don't have any counter-arguments to prove their point. This is why we want a live telecast of the proceedings so that everyone knows who is saying what. The insistence to bring the Prime Minister under the ambit of the Lokpal is described as unreasonable. Your reaction ? The government wants to keep the PM out of the ambit of the Lokpal's jurisdiction, which means that no allegation of corruption against him can be investigated. In effect, it amounts to giving complete immunity to the PM from any kind of investigation and prosecution, which in fact violates Constitutional provisions because the Constitution does not grant any such immunity to the PM. The Constitution grants such immunity only to the President. Rajiv Gandhi was also investigated by the CBI in the Bofors case. That did not deter him from taking decisions or made him dysfunctional. Likewise Narasimha Rao too came under the scanner in the JMM case. Our fears are real. Tomorrow if Madhu Koda becomes the PM, of which there is a very good possibility, he will be privy to security plans of the country. Can we allow that? But you also want the judiciary to be brought under the purview of the Lokpal ? Today, even if there is an allegation of corruption against a Supreme Court or High Court judge, no FIR can be registered or investigation started without the permission of the Chief Justice of India (CJI). The Chief Justices have been reluctant to give permission, despite overwhelming evidence of corruption presented against many judges. Despite overwhelming evidence of corruption available against many judges, permission to register FIR was granted only in one case by the CJI in the past 20 years. How do you justify your demand to cover MPs also under the Lokpal? There have been horse trading in the past. We have seen images of our honorable MPs receiving bundles of notes to vote in a certain manner or to ask questions in Parliament. But in the past 62 years, how many MPs have been prosecuted and sent to jail ? Forget conviction, many of these cases were not even investigated. Only enquiries were done on the basis of which some MPs were expelled. You are asking powers of search, summon, phone tapping etc. for the Lokpal. Would it create a "Frankenstein" ? These powers are already enjoyed by agencies like the Enforcement Directorate (ED), CBI or Income Tax. How will the Lokpal function without these powers ? The Lokpal cannot stand with folded hands in front of people like A. Raja, Kalmadi and Yeddyurappa and plead with them to disclose their wrong-doings and declare their illicit wealth. It is the corrupt who want a weak Lokpal Bill. We also want the CBI to be freed from the unholy control of the government and brought under the Lokpal. Questions need to be asked as to why it took the CBI three years to book Hassan Ali and two years to arrest A Raja. How will you ensure that the Lokpal does not become corrupt or grow into an extra-constitutional authority ? By ensuring that the right person is selected for the job. The Jan Lokpal will be selected by the PM, Leader of the opposition in Lok Sabha, the two youngest judges of the Supreme Court, two youngest Chief Justices of High Courts, the Comptroller and Auditor General and the Chief Election Commissioner from a pool of short-listed All meetings of the search committee and the selection committee will be video recorded and made public. Their work will be regularly audited and if they are found to be not working well, they can be removed. |
PROFILE
“I won the National Award possibly because there was not a single Malyalee in the jury” Not too many comedians have won the National Film Award for the best actor. For that matter, not many comedians have had the good fortune to become heroes or act in serious roles. It was, therefore, a path-breaking moment when the jury decided to give the best actor’s award jointly to Salim Kumar, a comedian in Malyalam films, and Dhanush, a Tamil actor this year. He won the award for essaying the unusual role of an old perfume vendor, who dreams of going on a pilgrimage to Mecca, with rare sensitivity. When he was offered the role though, the actor had initially refused and told the director that the film would flop if he acted as the hero. But he gave in to the director’s persistence and the director’s faith paid off when the film, Adaminte Makan Abu, won the award for the best feature film, for the best cinematography and the best background scores besides enabling Kumar to run away with the award for the best actor. He won the award, said Salim Kumar with his tongue-in-cheek, because there was not a single Malyalee in the jury this time. On a more serious plane, he acknowledged that the award was special not only because a non-Malyalee jury thought it fit to give the award but also because the film had not yet been released in Kerala. Salim Kumar’s comedy clips and dialogues have been a roaring hit and this is borne out by the several hundred thousand clips one finds uploaded to cyberspace by his fans. The popular actor, initially known for his slapstick comedy and coarse dialogues, has progressively matured as he honed his skills. Not endowed with classical good looks, and rejected for not having a photogenic face, he had to struggle against heavy odds including acute poverty in his childhood. Critics had dismissed him as a mere mimic and were vocal in running him down when he was selected as the ‘second best actor’ by the Kerala government a few years ago for his role in ‘ Achanturangatha veedu’. The role of Samuel in the film was one of the few character roles that had come his way and Salim Kumar made full use of the opportunity. Now that he has bagged the national award for the best actor, he has proved that it was no flash in the pan. Salim, who began his career by doing a comic cameo in Sidhique Shameer’s Ishtamanu Nooruvattam in 1996, has so far portrayed more than 100 characters. In the film Adaminte Makan Abu, the charaactr Abu the main character, Abu, holds his wife’s hands and says “ when I went on a pilgrimage in my dream, you were there. So how can I leave you behind and go to Mecca to perform the ‘Haj’. The scene touched a chord in the audience and brought tears to many eyes. “ It is one of my favourite moments in the film”, says Salim. The 2000-release—Thenkaashippattanam—proved to be lucky for Salim and established him as a much sought-after comedian in Malayalam films. With a strong presence in commercial films over more than a decade, the actor has been bringing down the house with ripples of laughter by keeping a straight face but delivering his punch lines with impeccable timing. His characters—advocate Mukundanunni in Meesha Madddhavan and Kannan Serank in Mayavi—were rated equivalent to some of the best-ever comedy performances in Malayalam. “ The award is a reward for the out –of-the-box thinking of director Salim Ahmed. It is true that there are not many people who would come forward to make films which would provide opportunity to actors like me to perform”, quipped Kumar while reacting to the news of the National Award. Salim Ahmed said that the award was a great recognition to a debutant director like him. “Salim Kumar’s performances in Kerala Cafe and Perumazhakkalam were very strong and prompted me to identity the character Abu in him,” said the director. The actor laments the fact that the film is yet to be released in Kerala. “Believe me, I was very sad when this film never got any attention even in my home state,” he added. Salim studied in North Paravoor and in Ernakulam. It was during his college days that he displayed a flair for mimicry and won the university title for best mimicry thrice. He joined a theatre group in Cochin Kalabhavan and was also associated with professional drama in Arathi Theatre, Kochi, for four years. The versatile artist was part of a hit comic programme on Asianet Television channel called Comincola, and has penned down his memoirs n a book titled Vazhakkillello. |
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